Sir David Fornsworth Smith (his parents actually named him “Sir David,” it was not a royal title) was known as a great lawyer. Thus it came as no surprise that, after he was appointed to the bench, he was also a stellar judge.
Similarly, it was also not unexpected that, when he retired from his judgeship after 11 years of impeccable service, he also excelled at mediating private disputes. What was surprising was Fornsworth Smith’s abrupt cessation of his mediation practice and retreat into virtual seclusion. It happened on a relatively nice day, just last month.
Two young lawyers had formed a partnership immediately after graduating law school.
After only two months together, however, they weren‘t talking, and things were looking grim. They approached Sir David and asked him to help them determine what was wrong with their partnership and to see if it could be salvaged. Sir David agreed, and the events that culminated in his retreat and seclusion were placed in motion.
Sir David had entered his conference room on that bright spring day much the same as he had on numerous occasions before. He had met with both parties in the big fish bowl conference room, and then had escorted the bickering partners to separate rooms. He had decided to talk first to the lawyer who had agreed to, but not suggested, the mediation.
Forty-five minutes later, Sir David emerged, shaking his head, walked into the conference room in which the other feuding partner patiently waited and told the partner quite bluntly that the partnership should just be dissolved. He then told his secretary that he was retiring immediately and asked her to cancel all his appointments and walked out the door – never to return.
Given his reputation in the legal community, the sudden turn of affairs caused a lot of speculation, as virtually everyone attempted to figure out exactly what had happened.
Eventually, when pressed for more details by the media, the mediation service for which Sir David had worked came forward. The service acknowledged it had a tape of the session and, after clearing it with ethics counsel, agreed to release it. (They deemed the release permissible despite mediation rules and attorney-client privilege issues because nothing privileged or substantive was ever discussed.) The transcript of that recording follows:
Sir David: Let’s start by you describing, in your own words, the grounds of the dispute.
Mr. _____: They are pretty nice actually. We own about an acre and a half with a relatively new building on it, a manicured garden, and a fountain. It’s quite beautiful...
Sir David: What I’m trying to get at, is an understanding of the source of the problems with your relations.
Mr. ____: Well, I’m not sure what my relatives have to do with anything, but it’s my understanding it all started when my uncle bought a new car without telling my aunt, she complained to my mother, but my father sided with the uncle, and then my cousins got angry with my father. It all happened over ten years ago, though, so I’m not exactly sure
Sir David: Have you ever done mediation before?
Mr. ___: Tried it once in college, but all that OMMM stuff was so silly that I could never relax.
Sir David: No, I meant have you ever seen a mediator before?
Mr. ___ I thought I did once. My former wife and I were driving between Boulder and Denver, in Colorado. She thought it was a flying saucer, but I don’t think so.
Sir David: Are you kidding me?
Mr. _____: I’m sorry, what?
Sir David: What do you believe is the problem with your partnership?
Mr. ____: No matter how hard I try, Darren just doesn’t communicate, and I can’t take it.
Sir David: YOU can’t take a lack of communication?
Mr.____: Well, I’d rather not talk religion, but I do believe Communion is important.
Sir David: No, I’m talking about the communication problem with the partnership. Do you understand? I’m talking about the partnership. Don’t you think you could be at fault?
Mr. ___: Our partnership? No, I don’t believe our building could be at a fault. We asked the insurance broker about earth quake insurance and he said we didn’t need any.
Sir David: No, I’m talking about the partnership itself. Listen, do you believe that making any change would help?
Mr. ____ It’s not about making change; when I lent him the money for the soda machine I didn’t expect to get it back.
Sir David: I think this is pointless.
Mr. ____: I noticed a pencil sharpener over in the corner
Sir David: No, I mean that we are done here
Mr. ____ Is that a problem, should we stand up?
Sir David: That’s it.
The transcript then ended with “Sounds of chairs moving, door opening and closing. End of Tape.”
The media and all of Sir David’s friends and colleagues were disappointed. The release of the transcript provided an explanation regarding Sir David’s sudden retirement, but not an answer.
As an attorney, then a judge, and then a mediator, Sir David had dealt with and managed many antagonistic, evasive, and perhaps even unbalanced clients, attorneys and witnesses. As frustrating as this particular session may have been, it did not in and of itself explain the sudden departure from the field. On the other hand, it did provide a stark lesson for attorneys everywhere: Sometimes the most important discovery is the recognition that it is YOU, and not the other guy, who is not taking the time to really hear or understand what is being said. Communication is a two way street, and remains the most important tool in the attorney’s arsenal today. Just ask Sir David Forsnworth Smith – if you can find him.
© 2011 under analysis llc. Charles Kramer is a principal of the St Louis, Missouri law firm, Riezman Berger PC. Under analysis is a nationally syndicated column of the Levison Group. Comments or criticisms about this column may be sent to the Levision Group in care of this paper or direct via email to comments@levisongroup.com